Citation Nr: 9900814
Decision Date: 01/13/99 Archive Date: 01/22/99
DOCKET NO. 95-17 856 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for a low back disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
INTRODUCTION
The veteran had active military service from June 1953 to
January 1977.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an August 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas, which denied service connection
for residuals of a low back injury.
In February 1997, the Board remanded this claim for
additional evidentiary development. As the RO complied with
the Board’s instructions, this case is ready for appellate
review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains, in essence, that he incurred a back
condition during military service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran has failed to
satisfy the initial burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that
his claim for service connection for a back condition is well
grounded.
FINDINGS OF FACT
1. The veteran has a current diagnosis of postoperative
decompression and fusion, L4-5 on the right.
2. During service, the veteran was treated for complaints of
back pain, and diagnoses included mechanical back pain and
muscle strain.
3. There is no competent medical evidence of a link between
the veteran’s current postoperative decompression and fusion,
L4-5 on the right, and any disease or injury in service, and
his claim is not plausible.
CONCLUSION OF LAW
The veteran has not presented a well-grounded claim for
service connection for a low back disorder, and there is no
statutory duty to assist him in developing facts pertinent to
this claim. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
In April 1994, the veteran filed a claim for service
connection for residuals of injuries to his low back that
happened during service from climbing into the cockpit of
airplanes. He stated that this condition began in 1965, and
he had continued to have problems since that time. He
submitted medical records from St. Mary’s Regional Medical
Center dated in March 1994 showing surgical decompression and
fusion for disc herniation at L4-5 on the right. The
preoperative note indicated that the veteran had had two
months of gradually progressive right hip pain, thigh pain,
and pain radiating to his ankle. A myelogram and magnetic
resonance imaging (MRI) showed a very large lateral disc
herniation and spinal stenosis at L4-5.
The veteran’s service medical records showed several
complaints of back pain. In October 1965, he reported pain
in the lower dorsal and upper lumbar portion of the back that
began after bending three days earlier. The pain was worse
with motion. Examination was negative throughout, and the
examiner’s impression was that there was no back pathology.
In May 1970, the veteran complained of pain in the back and
stated that something “popped” when he was reaching
overhead playing volleyball. X-rays of the thoracic spine
showed no fracture. The examiner’s impression was muscle
strain, and the veteran was advised to use heat and massage.
In October 1971, it was noted that he returned with the same
pain just to the right of the upper thoracic spine.
Examination showed mild tenderness to palpation. A
prescription for Valium was renewed. The examiner’s
impression was muscle strain.
In November 1971, the veteran was involved in an automobile
accident. He initially complained only of cervical pain, but
in December 1971, he reported pain in the lower thoracic area
since leaning over two days earlier. The examiner’s
impression was muscle strain. In August 1973, the veteran
complained of upper thoracic pain of one day’s duration.
Examination showed mild tenderness at T1-2. X-rays of the
thoracic spine showed no abnormalities. The examiner’s
impression was back pain.
In December 1974, the veteran reported a one-day history of
mid back pain. He denied any history of lifting. He denied
sciatica. Examination showed minimal paravertebral muscle
spasms from L1 to L3. Flexion was poor in all directions,
especially anteriorly. The neurological examination was
within normal limits. Strength in the lower extremities was
okay. The examiner’s impression was mechanical back pain.
The veteran was advised to rest in his quarters for 48 hours
and apply heat, and he was provided Valium and Darvon. The
following day, it was noted that the veteran wanted to be
released from quarters; he was released to duty.
In December 1975, the veteran complained of pain between the
shoulder blades, and he reported a history of low back
spasms. Four days later, he complained of pain in the upper
thoracic spine, on the right. During his retirement
examination in September 1976, the veteran reported a history
of recurrent back pain, which was treated with Valium and
Darvon. In December 1976, he complained of “burning pain”
in the mid thoracic back, which had started the prior
evening. The pain did not radiate, and he denied any history
of trauma. Examination showed point tenderness to palpation
of the mid thoracic vertebra. X-rays of the thoracic spine
were essentially within normal limits. The examiner’s
assessment was probable muscle strain, thoracic spine, T-3 or
T-4.
Associated with the claims file is the report of a VA
examination conducted in March 1977. The veteran reported
that his upper back ached when he worked hard and that it was
injured in an auto accident. He said he had no problems with
his dorsal or lumbar spine that he knew of. The veteran was
able to squat, stoop, and move about the examining room
without any difficulty. Range of motion for the dorsal and
lumbar spines was normal. There was no paraspinal muscle
spasm. The lower extremity reflexes were brisk, present, and
equal. There was no measurable atrophy of the calves or
thighs. Straight leg raising test was negative bilaterally.
X-rays of the lumbosacral spine showed that the bodies were
equal in height, and the interspaces were not narrowed. The
apophyseal and sacroiliac joints were quite roughened,
irregular, and sclerotic. No diagnosis of a lumbar spine
disorder was rendered.
Also associated with the claims file are reports of VA
examinations conducted in June 1977, May 1982, December 1987,
and February 1989, as well as extensive medical records for
treatment in 1986 and 1987 from St. Vincent Infirmary, St.
Mary’s Hospital, Little Rock Cardiology Clinic, and Millard-
Henry Clinic. None of these records showed any complaints or
findings regarding a back disorder. These records did
indicate that the veteran participated in regular physical
activity, such as walking two miles per day and chain sawing.
Upon VA hospitalization in October 1993, the veteran reported
a six-month history of cramping, tingling, and numbness in
his lower extremities, which were exacerbated by exercise and
resolved with rest. Examination showed deep tendon reflexes
were 2+ throughout. Muscle and sensory examinations were
grossly intact. He had a normal gait and could perform heel
and toe walking without difficulty.
In an August 1994 statement, the veteran stated that the
myelogram and MRI conducted at St. Mary’s, as discussed
above, finally revealed the nature of his persistent back
problems. He stated that the VA Medical Center had told him
that he had arthritis one week before his surgery. During
service, he had nagging back pains and was treated with
Valium and Darvon after x-rays showed no injury to his back.
He stated if a myelogram and MRI had been conducted during
service or his discharge physical, the true nature of his
injury would have been revealed.
A rating decision of August 1994 denied service connection
for residuals of a back injury. In his notice of
disagreement, the veteran stated that his back condition was
the same from the time he was in service until his surgery in
March 1994. In his substantive appeal, he again maintained
that the inservice physicians, as well as the VA doctors in
February 1994, had failed to properly diagnose his back
disorder by not conducting an MRI.
In February 1997, the Board remanded this case to obtain the
VA treatment records referenced by the veteran. It was also
noted that the veteran should be notified of the importance
of submitting any records for treatment for his back between
his separation from service and the present. In a March 1997
letter, the RO requested that the veteran provide information
as to treatment for his back from 1977 to the present. He
indicated that he had been treated by the VA Medical Center
in Little Rock, Arkansas, St. Mary’s Medical Center, Millard-
Henry Clinic, and Terry Green, M.D. The RO requested all of
these records in October 1997 and informed the veteran that
he should see that these facilities forwarded his medical
records to VA as soon as possible.
The Millard-Henry Clinic did not respond. The RO obtained
the veteran’s VA records covering the period October 1993 to
February 1994. In February 1994, the veteran complained of
pain in the right hip and right knee of several months’
duration. Examination showed no atrophy of the legs, and
reflexes and sensation were within normal limits. Straight
leg raising was negative. Patrick’s test was positive
bilaterally, right greater than left. The preliminary
diagnosis was probably synovitis of the hips. X-rays of the
hips and the right knee were ordered. The hips were within
normal limits on x-ray, and the right knee x-ray showed early
degenerative joint disease. No x-rays of the back were
ordered.
The medical records from St. Mary’s Hospital for the
veteran’s admission from February to March 1994 showed that
the veteran complained of a two-month history of severe low
back and right hip pain with pain to the legs. He had been
seen that morning and been given shots and prescriptions for
pain. The consultant’s report by Ted Honghiran, M.D., showed
that the veteran reported developing acute low back pain and
right hip pain 7-10 days earlier. It was noted that an MRI
showed a herniated nucleus pulposus at L4-5 on the right.
The MRI also showed moderate spinal stenosis at L4 secondary
to the herniated disc and bony ankylosis of both sacroiliac
joints.
The medical records from Dr. Green, who conducted the back
surgery at St. Mary’s in March 1994, showed that the veteran
was using a back brace after his surgery. In a follow-up in
May 1994, the veteran was concerned about a neck rash, and he
reported his back was less of a problem, but it still hurt
down the right leg some. X-rays of the cervical and lumbar
spine were taken. Two views of the lumbar spine revealed
what appeared to be a consolidating fusion between L4-5 along
the transverse processes, and the cervical spine x-ray showed
extensive spondylitic changes at the 6-7 disc. Diagnoses
were cervical spondylosis and postoperative decompression and
fusion, L4-5. A later note carried a diagnosis of lumbar
spondylosis, which would appear to be in error, given that
the x-ray report revealing spondylosis was of the cervical
spine. The veteran was released to return to work, light
duty, in September 1994.
II. Legal Analysis
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110 and 1131
(West 1991); 38 C.F.R. § 3.303(a) (1998). It is the
responsibility of a person seeking entitlement to service
connection to present a well-grounded claim. 38 U.S.C.A.
§ 5107 (West 1991).
Generally, a well-grounded claim is a “plausible claim, one
which is meritorious on its own or capable of
substantiation.” Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). In order to be well grounded, a claim for service
connection must be accompanied by supporting evidence that
the particular disease, injury, or disability was incurred in
or aggravated by active service; mere allegations are
insufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611
(1992); Murphy, 1 Vet. App. at 81. In general, the veteran’s
evidentiary assertions are accepted as true for the purpose
of determining whether a well-grounded claim has been
submitted. King v. Brown, 5 Vet. App. 19, 21 (1993).
A claim for service connection requires three elements to be
well grounded. It requires competent (medical) evidence of a
current disability; competent (lay or medical) evidence of
incurrence or aggravation of disease or injury in service;
and competent (medical) evidence of a nexus between the in-
service injury or disease and the current disability. Epps
v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v.
Brown, 7 Vet. App. 498, 506 (1995); aff’d 78 F.3d 604
(Fed.Cir. 1996) (table). This third element may be
established by the use of statutory presumptions. Caluza, 7
Vet. App. at 506. Truthfulness of the evidence is presumed
in determining whether a claim is well grounded. Id. at 504.
The second and third Caluza elements can also be satisfied
under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a
condition was “noted” during service or during an
applicable presumption period; (b) evidence showing post-
service continuity of symptomatology; and (c) medical or, in
certain circumstances, lay evidence of a nexus between the
present disability and the post-service symptomatology.
Brewer v. West, 11 Vet. App. 228, 231 (1998); see also Savage
v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively,
service connection may be established under 38 C.F.R. §
3.303(b) by evidence of (i) the existence of a chronic
disease in service or during an applicable presumption period
under 38 C.F.R. § 3.307 and (ii) present manifestations of
the same chronic disease. Brewer, 11 Vet. App. at 231. The
veteran’s diagnosed low back disability is not subject to
presumptive service connection under applicable law. Cf.
38 C.F.R. § 3.309 (1998). The Board notes that although the
veteran has stated a diagnosis of arthritis of the back has
been rendered, such diagnosis is not shown by the medical
evidence of record. Section 3.303(b) provides an alternative
method of demonstrating entitlement to service connection.
Rose v. West, 11 Vet. App. 169, 171-172 (citing Savage, 10
Vet. App. at 495-6 (section 3.303(b) is provision that
veteran “may utilize” because it provides “a substitute
way” of proving service connection)).
Although the veteran was treated on numerous occasions during
service for complaints of back pain, diagnosis of a chronic
low back condition was not rendered. The inservice diagnoses
were of acute and transitory conditions such as muscle strain
or mechanical low back pain. Moreover, the majority of the
veteran’s inservice complaints regarded pain in the thoracic
spine, not the lumbar spine. With respect to the veteran’s
contention that his “real” back problem was misdiagnosed
during service, the evidence does not support such a
conclusion. During service, repeated physical examination of
his back showed no findings indicative of a disc problem
(i.e., decreased reflexes and/or sensation, positive straight
leg raising), and the veteran denied any symptomatology
associated with a disc problem (e.g., radiation of pain).
The same lack of findings and symptomatology indicative of a
disc problem were shown upon VA examination shortly after his
retirement from service. Moreover, at that time, the veteran
expressly denied any problems with his lumbar spine.
Therefore, the Board concludes that the medical evidence does
not establish that the veteran had a chronic back disorder
during service.
The current medical evidence shows diagnosis of a lumbar
spine disorder. As indicated above, the veteran was treated
during service for complaints of back pain. Therefore, there
is sufficient evidence of a current disability and of a
disease or injury during service, and the first two elements
of a well-grounded claim for service connection have been
satisfied.
However, there is no competent medical nexus evidence to
associate the veteran’s postoperative decompression and
fusion, L4-5, right with a disease or injury during service.
At no time has a medical professional rendered an opinion
that any currently-diagnosed back condition is related to the
veteran’s active service in any manner.
The evidence shows the veteran’s statements that he
experienced back pain from his separation from service until
the present. He is certainly competent to report
experiencing such symptoms. Even accepting his complaints as
representative of continuity of symptomatology, there is no
competent medical opinion of record associating a current
back condition with any prior symptoms of back pain. Cf.
Savage, 10 Vet. App. at 497.
The veteran’s opinion that his current back condition is
related to the inservice complaints and/or his post-service
symptoms is not competent evidence. See Edenfield v. Brown,
8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App.
69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A
herniated disc is not the type of observable medical
condition for which lay observation is enough to identify its
existence. Savage, 10 Vet. App. at 495; see also Layno v.
Brown, 6 Vet. App. 465, 470 (1994) (lay evidence is competent
only when it regards the features or symptoms of an injury or
illness). Despite the credibility of the veteran’s
statements, he cannot meet his initial burden under
38 U.S.C.A. § 5107(a) simply by relying on his own opinion as
to medical causation.
The veteran has the initial burden of establishing a well-
grounded claim for service connection for a disorder, and,
until he does so, VA has no duty to assist his including by
providing him a VA examination. 38 U.S.C.A. § 5107(a) (West
1991); see Grivois v. Brown, 6 Vet. App. 136, 139-140 (1994).
When a claimant refers to a specific source of evidence that
could make his claim plausible, VA has a duty to inform him
of the necessity to submit that evidence to complete his
application for benefits. See Epps v. Brown, 9 Vet.
App. 341, 344-45 (1996), aff’d Epps v. Gober, 126 F.3d 1464
(Fed. Cir. 1997). The Board finds VA has no outstanding duty
to inform the veteran of the necessity to submit certain
evidence to complete his application for VA benefits.
38 U.S.C.A. § 5103(a) (West 1991). There is no indication of
any medical records that might well ground his claim. The
Board notes that the RO was unable to obtain the veteran’s
medical records from the Millard-Henry Clinic. Since the
veteran did not complete the dates he allegedly received
treatment for his back, it is unclear whether there are
treatment records from the Millard-Henry Clinic other than
those from 1986 and 1987 that were already associated with
the claims file. Regardless, the veteran has at no time
indicated that a medical professional has rendered an opinion
that he has a back disorder as a result of his military
service. It is therefore unnecessary that further attempts
be made to obtain his records from the Millard-Henry Clinic.
The presentation of a well-grounded claim is a threshold
issue, and the Board has no jurisdiction to adjudicate this
claim unless it is well grounded. Boeck v. Brown, 6 Vet.
App. 14, 17 (1993). There is no duty to assist further in
the development of this claim, because such additional
development would be futile. See Murphy, 1 Vet. App. 78.
ORDER
Entitlement to service connection for a low back disorder is
denied.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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